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Gauhati High Court · body

2020 DIGILAW 702 (GAU)

Y. Shinito Sema v. State of Nagaland

2020-10-08

S.HUKATO SWU

body2020
JUDGMENT : 1. This petition is filed by Er. Y. Shinito Sema presently serving as Assistant Mechanical Engineer in the Office of the Mechanical Engineer, PWD, Zunheboto and Er. Imnasua Walling presently serving as Assistant Mechanical Engineer, Directorate of Soil and Water Conservation, Nagaland, Kohima. 2. The petitioners are represented by learned counsel, Mr. Limawapang, the respondent Nos. 1 to 3 are represented by Ms. V. Suokhrie, learned additional senior government advocate and the private respondent No. 4 is represented by the learned counsel, Ms. Esther. 3. The challenge in the writ petition is directed against the (i) impugned Office Order No. E(II)/PF-6/38/87, dated 11.4.1997 regularizing the provisional appointment of the private respondent No. 4 as Mechanical Overseer Grade-I with retrospective effect from 25.1.1985, (ii) the tentative seniority list No. CE/M/PW/EST-60/07, dated 22-7.2009 of J.E.s under Mechanical Engineering Department circulated as on 31.5.2009, showing the name of the private respondent No. 4 above the names of the writ petitioners, (iii) the tentative seniority list NO. CE/M/PW/EST-60/2011-12/164, dated 16.5.2012 of A.M.E. under Mechanical Engineering Department circulated as on 29.2.2012, showing the name of the private respondent No. 4 above the names of the writ petitioners, (iv) the updated seniority list of A.M.E. under Mechanical Engineering Department circulated as on 31.3.2013, showing the name of the private respondent No. 4 at serial No. 3 above the names of the writ petitioners, (v) non-disposal of the letter dated 12.9.2013 submitted by the respondent No. 3 to the State respondent, requesting for an impartial examination and redressal of the seniority claim and counter-claim by rectification thereof, (vi) non-consideration of the petitioner's representation dated 31.5.2010 by the respondent-authorities for rectification of seniority list of J.E.s circulated on 31.5.2009. 4. The facts of the case is that the petitioner Nos. 1 and 2 are both diploma holders in Mechanical Engineering. The petitioner No. 1 was initially appointed as Mechanical Overseer Grade-I on provisional basis for a period of one year and posted under Changtongya Division attached to Mechanical Engineer, PWD, Mokokchung vide Office No. E(II)/G-61/84(Pt-II) dated 23.8.1985. The petitioner No. 2 was initially appointed as Mechanical Overseer Grade-II on provisional basis for a period of one year vide Office Order No. E(II)/G-61/81, dated 29.5.1984. The petitioner No. 2 was initially appointed as Mechanical Overseer Grade-II on provisional basis for a period of one year vide Office Order No. E(II)/G-61/81, dated 29.5.1984. Subsequently, vide Office Order No. E(II)/G/61 (Pt-II) dated 18.6.1985, he was promoted to Mechanical Overseer Grade-I on provisional basis subject to regularization of service by qualifying in the interview conducted by the Nagaland Public Service Commission (‘NPSC’). 5. The NPSC conducted interview against the post of Mechanical Overseer held by the petitioner No. 1 on provisional basis and was selected by the NPSC and the respondent No. 3 vide Office Order No. E(II)/G/61/84 (Pt), dated 19.11.1985 appointed the petitioner No. 1 to the post of Overseer Grade-I (Mechanical) under the Nagaland Public Works Department. In the same manner, petitioner No. 2 was selected by the NPSC and the respondent No. 3 vide common Office Order No. E(II)/G-61/84 (PT-II), dated 27.10.1986 appointed the petitioner No. 2 to the post of Overseer Grade-I (Mechanical) under the Nagaland Public Works Department subject to undergo probation period for two years. Probation period was regularized vide Office Order dated 23.4.1998 with effect from 26.10.1988. Copies of the order dated 27.10.1986 and 23.4.1998 are annexed as Annexure-C and D. 6. On the other hand, the private respondent No. 4 was initially appointed as Mechanical Overseer Grade-I on provisional basis vide Office Order No. E(II)/G-84/81, dated 25.1.1985 and posted under E.E. (PWD) Construction Division, Kohima. The said appointment was made on provisional basis with no right for regular appointment and regularization of service in the present grade is subject to qualifying in the interview/test which will be conducted by the NPSC in the near future. Copy of the order is contained as Annexure-E. The respondent No. 4 also appeared in the interview conducted by the NPSC in the year 1985 and also in the year 1986 but he could not succeed in the said interview. 7. Surprisingly, the respondent No. 3 regularized the provisional appointment of respondent No. 4 as Mechanical Overseer Grade-I with retrospective effect, i.e., 25.10.1985 by an order dated 11.4.1997 contained in Office Order No. E(II)/PF-6/38/87. This was in violation of the Office Memorandum dated 8.7.1975 and 19.11.1975 issued by the State Government. This is also in violation of the law of service jurisprudence, reinforced time and again by the courts. This was in violation of the Office Memorandum dated 8.7.1975 and 19.11.1975 issued by the State Government. This is also in violation of the law of service jurisprudence, reinforced time and again by the courts. The petitioners were not aware of the impugned Office Order dated 11.4.1997 regularizing the provisional appointment of the respondent No. 4 as Mechanical Overseer Grade-I with retrospective effect, i.e., 25.10.1985 till the department circulated the tentative seniority list of J.Es. in the year 2004. The copy of the order dated 11.4.1997 is annexed as Annexure-F to the writ petition. Thereafter, the State respondents upgraded the post of Overseer Grade-I to the post of Junior Engineer (Class-II Gazetted). The tentative seniority list of J.Es. under Mechanical Department on 31.3.2004 was circulated vide Order dated 29.10.2004. The J.Es. raised objection and counter-claims against the seniority list and the same was cancelled vide Departmental Circular NO. CE (M)/PW/EST-60/2003-04, dated 3.3.2006 and fresh tentative seniority list of J.Es. was issued under Mechanical Department as on 31.3.2004. In the tentative seniority list which was corrected after objection, the names of the writ petitioner Nos. 1 and 2 are shown in serial Nos. 11 and 15 respectively and the private respondent No. 4 is placed in serial No. 21. Copy of the order is shown as Annexure-G in the writ petition. 8. Again on 18.10.2007, the Department brought out another tentative seniority list showing the names of the writ petitioner Nos. 1 and 2 at serial Nos. 6 and 10, respectively and the name of the respondent No. 4 at serial No. 15. Copy of the tentative seniority list of J.Es. circulated as on 18.10.2007 is annexed as Annexure-H in the writ petition. However, when the Mechanical Department brought out the seniority list of J.Es. on 31.5.2009 vide letter No. CE(M)/PW/EST-60/07, dated 22.7.2009, the writ petitioners were placed at serial Nos. 6 and 9, respectively and the private respondent No. 4 was placed at serial No. 5 superseding the writ petitioners. The same letter dated 22.7.2009 is annexed as Annexure-I. The petitioners allegedly received the copy of this seniority list circulated vide letter dated 22.7.2009 only in the month of May, 2010 since the department did not circulate to them on time. The writ petitioners along with three other senior J.Es. The same letter dated 22.7.2009 is annexed as Annexure-I. The petitioners allegedly received the copy of this seniority list circulated vide letter dated 22.7.2009 only in the month of May, 2010 since the department did not circulate to them on time. The writ petitioners along with three other senior J.Es. were also aggrieved by the tentative seniority list and they jointly filed a representation to the respondent No. 3 on 31.5.2010 to rectify the seniority list. The same representation was forwarded to the State Government by the respondent No. 3 but the State Government did not consider the representation citing the reason that the representation was not filed on time and by letter dated 10.8.2010, their representation was rejected. The same is annexed in the writ petition as Annexures-J and K. Thereafter, when vacancy arose in the department, the petitioner No. 1 was promoted as Assistant Mechanical Engineer on officiating basis vide Order dated 27.10.2010 and the petitioner No. 2 was also promoted as Assistant Mechanical Engineer vide Order dated 25.10.2011. The promotion orders is annexed as Annexure-L. After promoting the writ petitioners to the post of Assistant Mechanical Engineer the respondents again circulated tentative seniority list of Assistant Mechanical Engineer on 29.2.2012 vide letter No. CE/M/PW/EST-60/2011-12/164, dated 16.5.2012. In the said impugned seniority list, the names of the writ petitioner Nos. 1 and 2 are placed at serial Nos. 8 and 11 respectively and the name of the private respondent No. 4 is placed at serial No. 7. Copy of the letter dated 16.5.2012 is contained as Annexure-M. 9. Aggrieved by this seniority list of A.M.Es., the petitioners approached the respondent No. 3 who referred the representation dated 24.11.2004, 6.10.2006 and 31.5.2020 submitted by the aggrieved J.Es. against the seniority position of the private respondent No. 4 vide letter No. CE/M/PW/Est-60/2013, dated 12.8.2013 wrote to the respondent No. 5 for examining the matter and to redress the seniority claim and rectification thereof. But the same is still pending for disposal. The same is annexed as Annexure-N. While the representation dated 12.8.2013 submitted by the respondent No. 3 to the State respondents was pending, the respondent-authorities again circulated the updated seniority list of Assistant Mechanical Engineer under Mechanical Engineering as on 31.3.2013 wherein, the private respondent No. 4 is placed at serial No. 3 and the writ petitioners are placed at serial Nos. 4 and 6 respectively. 4 and 6 respectively. The same is also annexed as Annexure-O. 10. The above being the position, the petitioners have filed the present writ petition for protection of their rights under articles 14 and 16 for issuance of mandamus on the ground that the impugned orders are violative of the State Government Memoranda issued under AR-13/21/74 dated 8.7.1975 and Office Memorandum No. APPT-16/1/67, dated 19.11.1975. Both the office memorandum provides that the seniority shall be counted from the date of regular appointment and the period rendered on ad hoc/contract appointment shall not be counted. The Office order dated 11.4.1997, therefore, is in violation of the above two memoranda issued by the Government. The two Office Memoranda which are annexed as Annexures-P and Q are reproduced herein below:- “GOVERNMENT OF NAGALAND HOME DEPARTMENT : ADMINISTRATIVE REFORMS (O&M) BRANCH No. AR-13/21/74Dated Kohima, the 8th July, 1975 MEMORANDUM Sub Counting of Seniority for service rendered on Ad hoc Appointment. The undersigned is directed to refer to the subject cited above and to say that it has been brought to the notice of this Department for clarification that whether the services rendered by an official on ad hoc appointment should count towards seniority including leave, increment and pension, etc. After careful examination it has been decided that if such ad hoc services is continuous followed by regular appointment/confirmation the period of ad hoc services, thus, rendered will count for increment, leave pension and other services benefit. But seniority in the particular cadre should count only from the date of regular appointment and should follow the order of merit given by the Nagaland Public Service Commission or the Selection Board. Sd/- A.K. BISWAS Under Secretary to the Government of Nagaland.” “GOVERNMENT OF NAGALAND HOME DEPARTMENT : ADMINISTRATIVE REFORMS (O&M) BRANCH No. AR-13/21/74Dated Kohima, the 8th July, 1975 MEMORANDUM Sub-Counting of the Government Servants on contract Appointment. The undersigned is directed to refer to the subject cited above and to say that a qiiestion has been raised as to whether a Government servant on contract appointment will count his service for seniority from the date of joining the post on Contract appointment or from date of absorption of regular basis into the said post. After careful consideration it has been decided that in such cases service for seniority shall be counted from the date of his absorption on regular basis. After careful consideration it has been decided that in such cases service for seniority shall be counted from the date of his absorption on regular basis. The period of such service, thus, rendered will count for increment, leave, pension and other service benefit. Sd/- K.S. PURI, Secretary to the Government of Nagaland.” 11. In terms of the above two memoranda, the seniority of respondent No. 4 as Mechanical Overseer should be counted with effect from 11.4.1997 and cannot be given retrospective effect, i.e., 25.1.1985. Since the petitioner Nos. 1 and 2 were regularized through NPSC vide order dated 19.11.1985 and 27.10.1986 respectively, their seniority must be protected over the respondent No. 4. With respect to the service jurisprudence concerning the retrospective regularization of service, the learned counsel for the petitioners, Mr. Limawapang has relied upon the case of Uttaranchal Forest Rangers' Assn. Direct Recruit v. State of U.P., (2006) 10 SCC 346 . The Apex Court in the above cited ruling has held that as under “38. This court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime.” 12. From the above decision of the Apex Court, it is clear that employees who are recruited directly must be placed in seniority above the employees who entered into service or the cadre by other methods of entry into service such as in the instant case. Furthermore, the petitioners also argued that the Nagaland Engineering Service Rules provides 90% of the posts of Mechanical Overseer has to be filled up by direct recruitment and 10% posts to be filled up by promotion. Rule 8 lays down that recruitment of service shall be made through the NPSC. This being the service rules concerning the Mechanical Engineer in Nagaland, there is no scope at all under the service rules for absorption of employees who have not qualified through NPSC. Rule 8 lays down that recruitment of service shall be made through the NPSC. This being the service rules concerning the Mechanical Engineer in Nagaland, there is no scope at all under the service rules for absorption of employees who have not qualified through NPSC. Therefore, it has been argued that the regularization of the respondent No. 4 by order dated 11.4.1997 and thereby protecting the seniority retrospectively for the period he has served provisionally is not only against the service jurisprudence as referred in the above case but this is also in total violation of the Government Notification and also against the Nagaland Engineering Service Rules and is, therefore, not sustainable under the law. 13. Mr. Limawapang, learned counsel for the petitioners has also replied to the argument forwarded by the respondents by citing the case of G.P. Doval v. Chief Secretary, Government of U.P., (1984) 4 SCC 329 , wherein, the Apex Court has held as under “16. A grievance was made that the petitioners have moved this court after a long unexplained delay and the court should not grant any relief to them. It was pointed out that the provisional seniority list was drawn up on 22nd March, 1971 and the petitions have been filed in the year 1983. The respondents, therefore, submitted that the court should throw-out the petitions on the ground of delay, latches and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it. We are not disposed to accede to this request because respondents 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners. Petitioners went on making representations after representations which did not yield any response, reply or relief. Coupled with this is the fact that the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult to rush to the court. Therefore, the contention must be rejected.” 14. The above citation and ruling is in para meteria with the case in hand. The representations submitted by the petitioners have been kept pending without resolving the issue by the respondents for the past 7 years. Therefore, the contention must be rejected.” 14. The above citation and ruling is in para meteria with the case in hand. The representations submitted by the petitioners have been kept pending without resolving the issue by the respondents for the past 7 years. The Annexure-N which is the letter dated 12.9.2013 addressed to the Commissioner and Secretary to the Government of Nagaland, Housing Department clearly reveals that the department is frustrated with the stand taken by the Government. The letter reflects “In this very connection regrettably there is no apparent record in this office redressing the grievances of both involved parties despite repeated representation received by the department”. The above letter is self-explanatory, the head of the department has no records whatsoever with respect to the petitioners. However, they have been receiving repeated complaints till the year 2013 and the same has been kept pending without addressing the issues. The above being the facts of the case and the petitioners situated as such, cannot be blamed for negligence and assert that they have lost their right which is a fundamental right by citing mere delay and laches. In the premises, it is argued that the matter deserves indulgence of this court to quash and set aside the (i) Office Order dated 11.4.1997. (ii) the Order dated 22.7.2009 of the tentative seniority of J.Es., (iii) tentative seniority of A.M.Es. circulated vide letter dated 16.5.2012 and (iv) the updated tentative seniority of A.M.Es. circulated as on 31.3.2013. 15. Appearing for the State respondent Nos. 1 to 3, Ms. V. Suokhrie, learned additional senior government advocate submits that employees who were appointed against clear vacancy/sanctioned post subject to regularization through NPSC or DPC whichever is earlier with effect from the date of joinirig the post and for which appointment made on provisional basis cannot be clubbed with ad hoc/contract appointments whose services are subject to extension time and again after stipulated time. Her argument is that the respondent No. 4 was appointed against clear vacancy on provisional basis and as such, his service was regularized with effect from the date of joining the post of Mechanical Overseer Grade-I. The respondent No. 4's service was regularized in the year 1997 and the same was not disputed or challenged by the petitioners at the relevant point of time and after sleeping over the matter for more than 20 years, they are taking up the issue which is irrational, illogical and perverse and it does not deserve indulgence of this court. Furthermore, the tentative seniority list dated 31.5.2009 issued by the Chief Engineer, PWD (Mechanical) vide letter No. CE/M/PW/EST-60/70, dated 22.7.2009, it was specifically stated that any claim/objection should be intimated to the office within 30 days from the date of issue of this order, otherwise, this will be treated as final. However, the petitioners have submitted their claims/objection only on 31.5.2010 which was after lapse of 10 months as such, in order to protect the rule of law, the same was not considered. Hence, the statements made by the petitioners are denied. She has further argued that the scope of Office Memorandum dated 8.7.1975 and Office Memorandum dated 19.11.1975 is the same pertaining to counting of seniority of ad hoc/contract appointment whereas, the respondent No. 4 was appointed against clear vacancy sanctioned post on provisional basis. Hence, the rule is not applicable to the respondent No. 4. Furthermore, “the department prepared tentative seniority list of J.E/s purely relying on the records maintained by the Department”. As far as the office records are concerned, the respondent No. 4 was regularized with effect from 2.1.1985 and the petitioners were regularized with effect from 27.9.1985 and 22.9.1986 and till date the same is not superseded by any orders as such, the statements of the petitioners are unfounded without any basis. 16. Appearing for the respondent No. 4, Ms. Esther, learned counsel submits that the circular dated 16.5.2012, which contains the seniority list of Junior Engineer has attained its finality wherein, the petitioners have been shown in serial Nos. 8 and 11 respectively while the respondent No. 4 is placed at serial No. 7 showing seniority over the petitioners. 16. Appearing for the respondent No. 4, Ms. Esther, learned counsel submits that the circular dated 16.5.2012, which contains the seniority list of Junior Engineer has attained its finality wherein, the petitioners have been shown in serial Nos. 8 and 11 respectively while the respondent No. 4 is placed at serial No. 7 showing seniority over the petitioners. The fact of the matter is that while publishing the seniority list, the Chief Engineer, Mechanical, PWD, Nagaland by circular dated 16.5.2012, it had specifically stipulated that all concerned for acceptance and if any claim/objection, it shall be intimated to the office within 30 days from the date of issue of this order, otherwise, this will be treated as final. The petitioners did not file any objection or claims as contained in the circular but instead prompted the respondent No. 3 to write a letter dated 12.9.2013 for reopening and re-examining the settled position of seniority. On coming to know the letter dated 12.9.2013 and representation dated 6.10.2006, the respondent have also submitted the representation dated 1.10.2013 to the Commissioner and Secretary to the Government of Nagaland, NPWD highlighting that his regularization in the Mechanical Overseer Grade-I was ordered in the year 1997 and as such, the same cannot be questioned after lapse of so many years. Again the seniority list dated 31.3.2013, of the Assistant Mechanical Engineer in the PWD Department, the respondent No. 4 is placed above the petitioners. The petitioners did not take any steps to challenge the seniority list promptly and the same has been challenged in the writ petition after lapse of more than 13 months. 17. With respect to Office Memorandum 8.7.1975 and 19.11.1975, learned counsel argues that these are executive instructions and do not have statutory force. Such executive instructions can be deviated for quite a sufficient reason. At the relevant time when the respondent was appointed on provisional basis, there were very few qualified person in the State for the post in question and, hence, the Government regularized the service of the respondents due to his long conduct and satisfactory service with effect from the date of his initial appointment. The order dated 11.4.1997 should have been immediately challenged if the petitioners were aggrieved. However, the petitioners are challenging the said order after a lapse of more than 17 years. Allowing such challenge would result in unsettling the settled positions of seniority. The order dated 11.4.1997 should have been immediately challenged if the petitioners were aggrieved. However, the petitioners are challenging the said order after a lapse of more than 17 years. Allowing such challenge would result in unsettling the settled positions of seniority. Belated challenge to seniority is impermissible in law. On the basis of the said seniority in the rank of Mechanical Overseer Grade-I, promotion have also been made to the post of Assistant Mechanical as such seniority in the Mechanical Overseer Grade-I has become irrelevant. Seniority in the promoted grade has to be fixed on the basis of substantive appointment in the promoted grade and not on the basis of seniority in the feeder grade. The petitioners are trying to reopen seniority issue which has been settled many years ago. 18. The petition is further liable to be rejected on the ground of delay and laches alone. Learned counsel while arguing on the issue of delay and laches has relied in the case of Shiba Shankar Mohapatra v. State of Orissa, (2010) 12 SCC 471 , wherein, the Apex Court has held as under “21. The issue of challenging the seniority list, which continued to be in existence for a long time, was again considered by this court in K.R. Mudgal v. R.P. Singh. The court held as under (SCC pp. 532 and 536, paras 2 and 7) “2 A government servant who is appointed to any post ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity. 7 Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this case. It is essential that anyone who feels aggrieved by the seniority assigned to him, should approach the court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties…. In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches.” (emphasis added) 22. In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches.” (emphasis added) 22. While deciding K.R Mudgal case, this court placed reliance upon its earlier judgment Malcom Lawrance Cecil D'Souza v. Union of India, wherein it had been observed as under “9. Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of contentment and efficiency in public service is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in a seniority list after having been settled for once should not be liable to be reopened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.” (emphasis added) 23. In B.S. Bajwa v. State of Punjab, this court while deciding the similar issue re-iterated the same view, observing as under “7 [I]t is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under article 226 and to reject the writ petition.” (Emphasis added) 24. In Dayaram Asanand v. State of Maharashtra, while reiterating the similar view this court held that in absence of satisfactory explanation for inordinate delay of 8-9 years in questioning under article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee could not be entertained. 25. In P.S. Sadasivaswamy v. State of Tamil Nadu, this court considered the case where the petition was filed after lapse of 14 years challenging the promotion. 25. In P.S. Sadasivaswamy v. State of Tamil Nadu, this court considered the case where the petition was filed after lapse of 14 years challenging the promotion. However, this court held that aggrieved person must approach the court expeditiously for relief and it is not permissible to put forward stale claim. The court observed as under (SCC p.154, para 2) “2 A person aggrieved by an order promoting a junior over his head should approach the court at least within 6 months or at the most a year of such promotion.” The court further observed that it was not that there was any period of limitation for the courts to exercise their powers under article 226 nor was it that there could never be a case where the courts cannot interfere in a matter after certain length of time. It would be a sound and wise exercise of jurisdiction for the courts to refuse to exercise their extraordinary powers under article 226 in the case of persons who do not approach it expeditiously for relief and who standby and allow things to happen and then approach the court to put forward stale claim and try to unsettle settled matters.” 19. From the above decision of the Apex Court, it is clear that the present petition suffers from delay and laches, hence, the writ petition should be dismissed. Again on the issue that there has been exercises of promotion, the respondent and the petitioners have all been promoted and seniority in the grade of A.M.Es. is now unquestionable which cannot be dependent on the seniority in the feeder post. She has placed reliance in the case of Kaushal Kishore Singh v. Dy. Director of Education, (2002) 9 SCC 634 , wherein, in paragraph 5, it has been held as under “5. The claim of seniority of the employee is always determined in any particular Grade or Cadre and it is not the law that seniority in one Grade or Cadre would be dependent on the seniority in other Grade or Cadre. It is no doubt true that the appellant has been held to be senior to respondent No. 4 in LT Grade by virtue of determination made by the Deputy Director of Education by his order dated 18.7.1994. It is no doubt true that the appellant has been held to be senior to respondent No. 4 in LT Grade by virtue of determination made by the Deputy Director of Education by his order dated 18.7.1994. But at the same time the Managing Committee in accordance with the provisions of the relevant regulation promoted the respondent No. 4 to the post of Lecturer by the so-called Resolution dated 1.8.1991 which appears to have been approved by the District Inspector of Schools on 10.4.1991. The so-called approval made by the Deputy Inspector of Schools has not been annulled by any higher competent authority under the Act or the Regulation nor any Court in an appropriate proceedings has annulled the same. Therefore, the rights of respondent No. 4 in the promoted post of Lecturer as well as subsequent post of Principal cannot be annulled by virtue of determination of seniority inter se between the appellant and respondent No. 4 in the LT Grade. Needless to mention the contention of the appellant that the Resolution of the Managing Committee was ante-dated cannot be gone into in this proceeding and this can only be gone into either by a higher authority under the Act or Regulation or in any duly constituted proceedings before any appropriate Forum. In that view of the matter, notwithstanding the determination of seniority of the appellant over respondent No. 4 in the LT Grade by the order of the Deputy Director, dated 18.7.1994, the so-called appointment of the respondent No. 4 to the post of Lecturer as well as to the subsequent post of Principal cannot be in any way affected by any order passed in this proceedings. While we agree that any observation made by the High Court in the impugned judgment will not affect the rights of the present appellant but at the same time the appointment of the respondent No. 4 to the post of Lecturer as well as to the post of Principal shall remain unaffected unless and until it is annulled by any competent authority in accordance with law. We make it clear by this order of ours, we are not approving the legality of the appointment of respondent No. 4 to the post of Lecturer or to the post of Principal.” 20. We make it clear by this order of ours, we are not approving the legality of the appointment of respondent No. 4 to the post of Lecturer or to the post of Principal.” 20. From the above cited decision of the law, it is now inappropriate to question the seniority in the promoted grade in between the petitioners and the respondent. The above being the fact and the law concerning the issues involving in the present writ petition, the case must be dismissed. 21. From the pleadings of the petitioners and the respondents the fact that the petitioner Nos. 1 and 2 were regularized through NPSC by Order dated 19.11.1985 and 27.10.1986 respectively is not disputed. The fact that the respondent No. 4 was appointed by an Order dated 25-01-1985 on provisional basis and he failed to pass the examination conducted by the NPSC in the year 1985 and 1986 is also not disputed. The dispute has arisen by the issuance of the order dated 11.4.1997 regularizing the provisional appointment of the private respondent No. 4 as Mechanical Overseer Grade-I with retrospective effect from 25.10.1985 thereby distorting the seniority list in the said cadre of Overseer Grade-I placing the petitioners below the respondent No. 4 in the seniority list. There has been consistent and persistent issue of seniority by the operation of this letter dated 11.4.1997 with effect from 29.10.2004 till the present date and the issue of the seniority between the petitioners and the respondent No. 4 has remained unresolved till date. The history of dispute began on 29.10.2004 when seniority list of the J.E/s were brought out thereby distorting the seniority of the petitioners and the other Junior Engineers. The post of Overseer Grade-I, by then, have been upgraded to the post of “J.E.”. For clarification the J.Es. who were affected by this seniority list filed complaint and representation and thereafter, the department issued fresh seniority list correcting the earlier seniority list by an order dated 3.3.2006. The petitioners were placed in seniority list Nos. 11 and 15 and the respondent No. 4 was placed in serial No. 21. Thereafter, again another seniority list was issued by the Department on 18.10.2007. The writ petitioners were placed at serial No. 6 and 10 respectively and the respondent No. 4 was placed at serial No. 15. The petitioners were placed in seniority list Nos. 11 and 15 and the respondent No. 4 was placed in serial No. 21. Thereafter, again another seniority list was issued by the Department on 18.10.2007. The writ petitioners were placed at serial No. 6 and 10 respectively and the respondent No. 4 was placed at serial No. 15. Till this date, there was no dispute of seniority with the respondent No. 4, however, when the Department brought about a fresh seniority list on 31.5.2009 by an order dated 22.7.2009, the writ petitioners were placed below the respondent No. 4 who was shown at serial No. 5 and the petitioner Nos. 1 and 2 were placed at serial Nos. 6 and 9, respectively in the impugned seniority list. This is when the petitioners filed the representation to the respondent No. 3 but the said representation was rejected by letter dated 10.8.2010, which is reproduced herein below as the same would be useful for our discussion. “GOVERNMENT OF NAGALAND WORKS & HOUSING DEPARTMENT (ESTABLISHMENT BRANCH) No. WH/EST/47/2010Dated 10th August, 2010 To, The Chief Engineer (Mechanical) Kohima, Nagaland Sub Representation for review and rectification of tentative seniority list of Junior Engineer. Sir,- I am directed to refer to your letter No. PW/EST-60/2007, dated 8.6.2010 and dated 3.8.2010 on the above cited subject and to say that the seniority list of Junior Engineers were issued by your office from time-to-time without any reference to the Government, therefore, unless you furnish your comments it is not possible for us to give any direction. Further, the aggrieved Junior Engineers should have represented against the seniority list within the stipulated period of 30 (thirty) days and in the present case they have represented after the expiry of the stipulated period and it appears to be too late to consider their representation. Yours faithfully, (KOTENO) Under Secretary to the Government of Nagaland.” 22. Thereafter, on 27.10.2010, the petitioner Nos. 1 and 2 were both promoted as Assistant Mechanical Engineer and on 29.2.2012 again another seniority list was brought out by the Mechanical Department by the letter No. CE/M/PW/Est-60/2011-12/164, dated 16.5.2012 wherein, the respondent No. 4 was shown in seniority list No. 7 and the petitioner Nos. 1 an 2 have been shown in serial Nos. 8 and 11, respectively. 1 and 2 were both promoted as Assistant Mechanical Engineer and on 29.2.2012 again another seniority list was brought out by the Mechanical Department by the letter No. CE/M/PW/Est-60/2011-12/164, dated 16.5.2012 wherein, the respondent No. 4 was shown in seniority list No. 7 and the petitioner Nos. 1 an 2 have been shown in serial Nos. 8 and 11, respectively. Again aggrieved by this order, the petitioners approached the respondent No. 3 who referred the representation dated 24.11.2004, 6.10.2006 and 31.5.2010 submitted by the aggrieved J.E/s against the seniority position of the respondent No. 4 and by a letter No. CE/M/PW/Est-60/2013, dated 12.8.2013, the respondent No. 3 wrote a letter to the Commissioner and Secretary to the Government of Nagaland, Works and Housing Department for examination and rectification thereof but the same is still pending for disposal. It will be useful to reproduce the letter written by the respondent No. 3 to the Commissioner and Secretary, Government of Nagaland, Works and Housing for our discussion. “GOVERNMENT OF NAGALAND OFFICE OF THE CHIEF ENGINEER MECHANICAL NAGALAND : PWD : KOHIMA No. CE/M/PW/Est-60/2013Dated Kohima the 12th Sept., 2013 To, The Commissioner & Secretary To the Government of Nagaland, Works & Housing Department, Kohima Sub Redressal on Seniority Claims and Counter Claims- Examination and Rectification thereof. Sir, In inviting your kind attention to the subject given above, I have the honour to submit a matter regarding the correctness of seniority in the grade of Asstt. Mechanical Engineer's along with some records and documents for your kind examination and appropriate redressal thereof. (1) That Sir, in the year 25th January, 1985 a batch of qualified trainees in Diploma Course in Civil/Mechanical Engineering were appointed in various positions on ad-hoc basis purely on provisional basis, with no right for regular appointment. Further that quote “The regularization of their service in the present grade is subject to qualifying themselves in the interview/Test which will be conducted by NPSC in due course” Unquote copy of the Appointment order No. E (II)/9-84, dated 25.10.1985 vide which 21 incumbents including Shri. Hokugha Sumi at Sl. No. 19 is enclosed herewith (Annexure-1). Again in the same year 19th November, 1985 Shri. Y. Shiruto was appointed to the post of Overseer Grade-I (Mech) through NPSC. Appointment order No. E(II)G-61/84 (Pt), dated 19th November, 1985 (order copy enclosed for reference.) (2) Subsequently in 1986 some of the …. No. 19 is enclosed herewith (Annexure-1). Again in the same year 19th November, 1985 Shri. Y. Shiruto was appointed to the post of Overseer Grade-I (Mech) through NPSC. Appointment order No. E(II)G-61/84 (Pt), dated 19th November, 1985 (order copy enclosed for reference.) (2) Subsequently in 1986 some of the …. Incumbents could qualify through the NPSC for regular appointment and the consequent order was issued by the Chief Engineer's office order No. vide No. E(II)G-61/84/Pt-II), dated 27th Oct’86. However Shri Hokugha Sumi the then Mechanical Overseer was not included among the NPST qualified incumbents. (3) Office records reveal that during 1997 the office of the Chief Engineer PWD (R&B) issued an office order exclusively and particularly regularizing the Provisional Appointment of Shri. Hokugha Sumi Mechanical Overseer Grr-I against vide this office Order No. E (11)9-84, dated 21.1.1985 (see Annexure-1 above) w.e.f. the date of joining the post of Mechanical Overseer Gr-I vide Order No. E (II) PF-6/38/87, dated 11.4.1997 (copy enclosed as Annexure-II). (4) Following the event in 2004 this office received a representation from some of the then Junior Engineers questioning the justification of regularizing the service of Shri. Hokugha Sumi, Junior Engineer w.e.f. the date of joining service, etc., (copy enclosed as Annexure-III). (5) Again during 2006 and 2010 similar representation seeking redressal and questioning the legality of the regularization of the ad hoc services of Shri Hokugha Sumi was received from the same group (coy enclosed as Annexure-IV and their claim was based on the standing Government, executive order on counting of seniority for service rendered on ad hoc appointment. Notified vide Memo No. AR-13/21/74, dated 8th July, 1975 by the Government through Home Department : Administrative Reforms (O&M) Branch (coyp enclosed) for ready reference. (6) The concerned incumbent Shri Hokugha Sumi the then Junior Engineer had also submitted his proposal representation in this particular matter during 6th October, 2006 (copy enclosed as Annexure-6). In this very connection regrettably there is no apparent record in this office redressing the grievances of both the involved parties despite repreated representation received by the department. In the meantime Tentative Seniority List have been issued from time-to-time by the department where Shri Holugha Sumi has been listed above those NPSC qualified incumbents which very part is still under despute. In the meantime Tentative Seniority List have been issued from time-to-time by the department where Shri Holugha Sumi has been listed above those NPSC qualified incumbents which very part is still under despute. Again the given background settlement of the seniority lies only on the purview of the State Government as the concerned incumbent today …. gazetted post. It is also felt that promotion to the next higher grade in respect of the concerned of…. Cannot take place smoothly without a final and undisputed seniority list is mentioned by the department/State Government. Therefore, the matter is being referred to the State Government for an impartial examination and rectification of the seniority list. Enclo:- As stated above (LIMATEMSU LONGKUMER) Addl. Chief Engineer & HOD, Mechanical : PWD : Nagaland Kohima” 23. The above representation is still pending for disposal, hence, this writ petition. All the above facts enumerated are not disputed. Only ground for agitating against the petitioners by the respondents is that there has been delay. As pointed out by the learned counsel for the respondent No. 4, we need not overburden this judgment with myriads of the judgments that has been rendered by the Apex Court with respect to delay and laches while exercising writ jurisdiction under article 226. The principle concerning the delay and laches from the various ruling of the Apex Court is clear that although there is no time bar set by the provision of law regarding the filing of a writ petition, it is reiterated in several rulings that aggrieved person must be prompt in bringing the petition before the court for redressal at the appropriate and reasonable time. The failure to exercise this right, even the constitutional right may be taken away if it can be deduced from the facts of a particular case that there has been inordinate delay against the petitioner and this legal right would stand acquiesced. The Apex Court has also cautioned that the exercise of writ jurisdiction should not unsettle position which have already been settled for a considerable period of time and the exercise of writ jurisdiction may breach the right of third party involved. What time is to be considered as laches and delay would depend on each and every case and the same has to be exercised keeping in view the necessity of justice in mind. 24. What time is to be considered as laches and delay would depend on each and every case and the same has to be exercised keeping in view the necessity of justice in mind. 24. The present writ petition being opposed solely on the ground of laches and delay, it is the obligation of this court to determine whether the myriad of rulings by the Apex Court laying down the principles regarding the doctrine has been hit in the instant case or not. The doctrine of delay and laches is a watchdog in the legal system which ensures that only right cases are addressed and any malice or unexplained delay is properly dealt with due reprimand. The doctrine of laches may be summed up as consideration of the following facts: (i) it is concerned with the reasonableness of a delay in filing the legal action. The court is to consider whether by the interregnum actions of the petitioner, he has acquiesced to his legal rights; (ii) that the long delay in the filing of the writ does not adversely affect the rights of third parties by operation of time; (iii) whether the case has been filed with malicious intent and the delay cannot be excused. 25. The doctrine of laches is built upon the phrase “vigilantibus et non dormientibus jura subveniunt” which means that equity aids the vigilant and not who slumber over their rights. Legal right will not be enforced if a long delay in ascertaining the right or claim has produced the benefit to the adverse party. No time limit can be set on wrongs done against constitutional rights as there are values and principles on which the entire nation is based on. Many constitutional wrongs will be done away with if limitation is set as a precedent. Thus, judges are given liberty to decide each case according to the circumstance and facts present in that particular case. 26. In the case of State of Madhya Pradesh v. Nandlal Jaiswal, (1986) 4 SCC 566 it was held that ultimately it would be a matter within the discretion of the court : ex-hypothesi, however, discretion must be exercised fairly and justly so as to promote justice and not to defeat it. 26. In the case of State of Madhya Pradesh v. Nandlal Jaiswal, (1986) 4 SCC 566 it was held that ultimately it would be a matter within the discretion of the court : ex-hypothesi, however, discretion must be exercised fairly and justly so as to promote justice and not to defeat it. In Tukaram kana Joshi v. State of Maharashtra Development Corporation, (2013) 1 SCC 353 , at para 12, the Apex Court held that “delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the case. Delay and laches is on the facets to deny exercise of discretion. It is not absolute impediment. There can be mitigating factors, continuity of cause of action etc. That apart, if the whole thing shocks the judicial conscience, then the court should exercise the discretion more so, when no third party interest is involved. Thus, analyzed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.” In the case of G.P. Doval v. Chief Secretary, Government of U.P., (1984) 4 SCC 329 at para 16, the Apex Court held that “a grievance was made that the petitioners have moved this court after a long unexplained delay and the court should not grant any relief to them. It was pointed out that the provisional seniority list was drawn up on March 22, 1971 and the petitions have been filed in the year 1983. The respondents, therefore, submitted that the court should throw-out the petitions on the ground of delay, laches and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it. We are not disposed to accede to this request because respondents 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners. Petitioners went on making representations after representations which did not yield any response, reply or relief. We are not disposed to accede to this request because respondents 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners. Petitioners went on making representations after representations which did not yield any response, reply or relief. Coupled with this is the fact that the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult to rush to the court. Therefore, the contention must be rejected”. Therefore, within the well settled parameters of what would be considered as laches with respect to the present case at hand, we need to study the facts. It is an undeniable fact that the respondent No. 4 was appointed prior to the petitioners on 25.1.1985 as Mechanical Officer, Grade-I. However, it is also an admitted fact that the respondent No. 4 failed in the interview conducted by the NPSC in the year 1985 as well as 1986. Thus, he became junior to the petitioner Nos. 1 and 2 when they cleared their NPSC exams. Petitioner No : 1 cleared his NPSC exam vide No. E(II)/G-61/84(Pt), dated 19.11.1985 while respondent No. 2 cleared his NPSC vide order No. E(II)/G-61/84(Pt)-II, dated 27.10.1986. Hence, the petitioners became senior to the respondent No. 4 by virtue of the passing of the NPSC exams. This is in consonance with the Home Department, Administrative Reforms (O&M) Branch No. AR-13/21/74, dated 8.7.1975, wherein it has been declared that the seniority in particular cadre should count only from the date of regular appointment and should follow the order of merit given by the NPSC or the Selection Board and also Office Memorandum No. APPT-16/1/67, dated 19.11.1975 where it has been provided that the seniority of Government employees appointed on contract was not to be counted. Seniority shall be counted but from the date of his absorption on regular service. However, in the year 2004, by an order dated 29.10.2004, tentative seniority list of J.E.'s was brought out wherein the seniority of the petitioner Nos. 2 and 3 were shown below the seniority of respondent No. 4. On representation by the aggrieved J.E.s, including other J.Es. along with the petitioners, the respondents rectified the questioned seniority list and brought out a seniority list order dated 3.3.2006. 2 and 3 were shown below the seniority of respondent No. 4. On representation by the aggrieved J.E.s, including other J.Es. along with the petitioners, the respondents rectified the questioned seniority list and brought out a seniority list order dated 3.3.2006. In their letter No. CE(M)/PW/EST-60/2003-04, the seniority list was rectified and the seniority of the petitioner Nos. 1 and 2 was placed above the respondent No. 4. Again another tentative seniority list was brought out by the respondents on 18.10.2007 wherein the petitioner Nos. 1 and 2 were placed at seniority list Nos. 6 and 10 while the respondent No. 4 was placed in seniority No. 15. Thus, after having secured seniority till 2007, the matter was kept silent. However, on 31.5.2009, another seniority list was brought out, wherein the respondent No. 4 suddenly became senior to the petitioner Nos. 1 and 2. The respondent No. 4 was placed at serial No. 5 while the petitioner Nos. 1 and 2 were placed at serial Nos. 6 and 10, respectively. Thus, when 5 members of the J.E. represented to the Government by a letter dated 31.5.2010, to the respondent No. 3/Chief Engineer (Mechanical), PWD, Nagaland for rectifying the seniority list and in terms of the office rules and norms, this letter was rejected by the Works & Housing Department by letter No. WH/EST/47/2010, dated 10.8.2010 citing that: “To, The Chief Engineer (Mechanical), Kohima, Nagaland Sub Representation for review and rectification of tentative seniority list of Junior Engineers Sir, I am directed to refer to your letter No. CE(M)/PW/EST-60/20017, dated 8.6.2010 and dated 3.8.2010 on the above cited subject… to say that, the seniority list of Junior Engineers were issued by your office from time-to-time without any reference to the Government, therefore, unless you furnish your comments it is not possible for us to give any direction. Further, the aggrieved Junior Engineers should have represented against the seniority list within the stipulated 30 days and in the present case, they have represented after expiry of the stipulated period and it appears to be too late to consider their representation. Yours faithfully, (KOTENO) Under Secretary to the Government of Nagaland.” 27. Their delay was, however, explained that the copies of the same was not furnished and the letter rejecting their representation was also not communicated in time. Yours faithfully, (KOTENO) Under Secretary to the Government of Nagaland.” 27. Their delay was, however, explained that the copies of the same was not furnished and the letter rejecting their representation was also not communicated in time. While the same seniority was kept pending, again the petitioners were promoted as Assistant Mechanical Engineers and also the respondent, and again the department brought out another seniority list on 29.2.2012, wherein the tentative seniority of Assistant Mechanical Engineers was fixed. Therein again, the respondent No. 4 was shown as being placed in seniority list No. 7 while the petitioner No. 1 was placed at serial No. 8 and the petitioner No. 2 was placed at serial No. 11. Again they made representations to the respondent No. 3. The respondent No. 3 forwarded the representation to the respondent No. 1 who has forwarded their petition along with the covering letter wherein, it is self-explanatory by a letter dated 10.9.2013 and the same still remains to be replied. This being the position, the petitioners filed the writ petition on 27.5.2014. On examination of the whole story/history pertaining to the issue of seniority, there has been consistent representations after representations by the petitioners beginning from 2004 until 2010 and it may be recorded herein that the seniority list so prepared were against all norms of service jurisprudence for the simple fact that a candidate who could not qualify in the NPSC exams was placed above a candidate who could qualify the NPSC exams. The seniority was sought to be protected by bringing out an impugned order dated 11.4.1997. Furthermore, with the representation so filed against this injustice, the respondent further sought to promote the respondent No. 4 and brought out a fresh seniority list in the next higher cadre before even settling the seniority dispute in the lower grade of J.E. The same seniority was again represented and in the same representation is reflection of the misdeed of the respondent No. 2 communicated by the respondent No. 3, wherein he has expressed that seniority list has not been finalized till date despite several representations that has been received. Again in the given background he has felt that the promotion to next higher cadre in respect of the concerned officers cannot take place without the same final and undisputed seniority list. Despite this communication, there is no reply. 28. Again in the given background he has felt that the promotion to next higher cadre in respect of the concerned officers cannot take place without the same final and undisputed seniority list. Despite this communication, there is no reply. 28. From the above given undisputed facts, it is clearly seen that the petitioners have been agitating on the issue of seniority since the inception of their services as Grade-I Mechanical Overseers from the beginning of 2004. There is total lack of transparency with regard to fixing of seniority by the respondents as they have been producing seniority list from time-to-time without considering the norms laid down by the Government and also against the service rules. In 2004, they brought out seniority list which was not in conformity with the position and they were compelled to rectify the same. This kept undisputed until 2009 wherein, again the seniority was distorted without citing any reasons. While the same was kept in challenge and was settled by the respondents, again on promotion in the year 2012, they brought out seniority list which was not in consonance with the merit of seniority of the petitioners and the respondents. The one stand taken by the respondents was that the petitioners had caused the delay in representing after lapse of 30 days. This was, however, explained by the petitioners that they were not in receipt of the seniority list until 10.5.2010 and this court is of the view that this delay cannot be treated as the petitioners having acquiesced their rights. The communication within the party of the respondents also clearly reflects that there is no record by which the respondent No. 2 may assess the merit of the petitioners which is unacceptable and which is only a ploy to disprivilege the petitioners. By no stretch of imagination can the petitioners be held to have caused delay as the attitude of the respondents is clear and their action also suggests that the seniority is distorted from time-to-time. In fact, since the representation dated 2013, which was forwarded by none other than respondent No. 3 to respondent No. 2 sufficiently explains that there has been continuous representations with respect to the seniority issue in the J.E. cadre of the Mechanical Department and that they have not been able to solve the same problem. In fact, since the representation dated 2013, which was forwarded by none other than respondent No. 3 to respondent No. 2 sufficiently explains that there has been continuous representations with respect to the seniority issue in the J.E. cadre of the Mechanical Department and that they have not been able to solve the same problem. He has also suggested that the promotion without consideration of this seniority to the higher grade of Assistant Mechanical Engineer would be difficult as they have not settled the disputed seniority in its finality. All these documents are suggestive that the petitioners have been actively agitating for their seniority and they have not been sleeping over their rights. 29. From the facts that has been brought before this court, the following undisputed facts are established: (i) Service rules of the Engineers under section 8 which lays down that 90% of the post has to be filled up by direct recruit and 10% by way of promotion was violated by the impugned order dated 11.4.1997. (ii) The OM dated 19.11.1975 of the Government was in violation of OM dated 8.7.1975 and 9.11.1975. (iii) It was in violation of the Apex Court's order in the case of Uttaranchal Forest Rangers' Assn. Direct Recruit v. State of U.P, (2006) 10 SCC 346 . The Apex Court in the above cited ruling has held that as under:- “38. This court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime.” Thus, it is seen that the respondents have violated all norms of service jurisprudence and also the Apex Court's order as mentioned above. Hence, the action of the respondent may be described as “shocking the judicial conscience” and has to be interfered with even if laches and delay are seen. It would, therefore, be regarded as a settlement of unsettled issues and not unsettling of settled position as argued by the … Respondents. Hence, the action of the respondent may be described as “shocking the judicial conscience” and has to be interfered with even if laches and delay are seen. It would, therefore, be regarded as a settlement of unsettled issues and not unsettling of settled position as argued by the … Respondents. On the submissions made by the respondents that respondent No. 4 was posted against a regular post and that he was provisionally posted and should not be treated at par with ad hoc and contract employees, I am unable to accept the argument since the word ‘provisional’ would suggest that it; is relative to existing for the present with possibility to be changed later,! which does not bring the case of the respondent No. 4 at a better footing than ad hoc or contract employees. 30. The argument that the seniority has been settled 17 years back is also contrary to what has bejen placed on records. The records clearly shows that the dispute has its origin in 2004 when the seniority was fixed for Overseer Grade-I employees and it was challenged and was modified with no aberrations with respect to seniority of the petitioners. Again in the year 2007, seniority was brought out which was also not disputed showing the seniority of the petitioners above the respondent No. 4. However, in the year 2009, the seniority was distorted by giving seniority to respondent No. 4 against which representation has been made in the year 2010, which was seemingly rejected with a cryptic order opining that there are no clear records available to assess their seniority, however, the seniority issue will not be reopened because they were late in filing their objection by 10 months. Thus, situated, again in the year 2012, another seniority was brought out after promotion of the petitioners and the respondents to Mechanical Engineers showing the petitioners junior to the respondent No. 4. This was fixed without resolving the seniority issue of 2009 and since then representation has been filed which remains unresolved. It is clear from the letter of respondent No. 3 that continuous representations had been received with respect to seniority issue of the J.Es. which has not been resolved and consideration of promotion without resolving the same would be difficult unless the disputed seniority is settled in its finality. Despite this note, the promotion was affected bringing more complications. It is clear from the letter of respondent No. 3 that continuous representations had been received with respect to seniority issue of the J.Es. which has not been resolved and consideration of promotion without resolving the same would be difficult unless the disputed seniority is settled in its finality. Despite this note, the promotion was affected bringing more complications. Thus, the actual dispute arose in the year 2009 and not 17 years back as argued by the respondents. The petitioners have filed their writ petition in the year 2014 after having lost faith that their representation would be considered, however, it is to be noted that the representation is still not resolved by the respondent and it is pending. Therefore, I am unable to accept the argument that the dispute was settled 17 years back. The case of G.P. Doval (supra) squarely covers this case. It is also to be kept in mind that there are provisions for alternative dispute resolution which is encouraged not to overburden the courts. When the issues are under active considerations; there is no need to hurry to Court of law. The doctrine of laches is based on one of the principles that the courts should not be over burdened. Hence, I do not find that there is laches. The doctrine of laches as is propounded by the Apex Court in its various judicial decisions may be summed up as: (i) when the case of the petitioners suggest that they have been negligent and they have been sleeping over their rights, the doctrine of laches would apply once it is established that the petitioners have acquiesced their rights. In the instant case, there has been continuous and persistent representations and it cannot be deduced that the petitioners have acquiesced their rights. (ii) Due to the long pendency of the matter unsettling of the settled issue should not disturb the rights of third parties involved in the matter. However, in the instant case, it is reported that both the petitioner No. 1 and respondent No. 4 have since retired and determining their seniority could not disturb the rights of third parties, hence, the doctrine of laches could not be applied to them. (iii) If it is established that the petition is filed in a malicious manner, the doctrine of laches would apply. However, there is no ground to suggest that it is a malicious petition. (iii) If it is established that the petition is filed in a malicious manner, the doctrine of laches would apply. However, there is no ground to suggest that it is a malicious petition. The only grievance of the petitioners is that their fundamental rights have been violated, which cannot be considered as a petition filed with malicious intent. Thus, the respondents are unable to establish any grounds which has been laid down by the Apex Court so that the instant case may be considered as suffering from the doctrine of laches and delay. The impugned order dated 11.4.1997, which confers retrospective seniority of the respondent No. 4 and awards prospective benefits of impugned orders dated 22.7.2009, 16.5.2012 and 31.3.2013 are, therefore, not in consonance with the service jurisprudence and are hereby quashed and set aside. The petition is allowed. 31. The seniority of the petitioners shall be fixed without the operation of the impugned orders which stands quashed. 32. The petition is allowed and disposed of on merit.